Abstract

The lawmakers have written the Indian Constitution in such a manner that they may operate like persons while not overlapping with the tasks of other parts, hence respecting Montesquieu's notion of separation of powers. The concept of “Judicial Overreach” refers to the belief that the higher judiciary's current role, functions, and attitudes do not correspond to what was intended by the concept of separation of powers in the constitution, which established separate domains for the Executive, Legislature, and Judiciary. It is widely accepted that this trend has harmed the key institutions of government, since the tendency to encroach on each other's domains impedes the healthy growth of all institutions, and therefore good governance and the strengthening of democracy. Therefore, the only legitimate way for judicial intervention is called judicial review. Only by examining the functions assigned to the various departments of government can a fine line be established between proper and inappropriate judicial action. Purely political and policy issues that do not involve the resolution of a basic legal issue are hence outside the purview of the court. The ability of the superior judiciary to issue a writ of mandamus or other appropriate instruction to the relevant public authority requiring fulfillment of its legal responsibility is the remedy in the case of governmental inactions or institutional breakdowns. However, there is a significant contrast between such public authority ordering performance and the judiciary taking up such a role on its own. The former is proper judicial involvement, not the latter.

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